Guantánamo’s Military Commissions: More Chaos in the Cases of Abd Al-Rahim Al-Nashiri and Majid Khan

"High-value detainee" Majid Khan, photographed at Guantanamo in 2009.Please support my work! I’m currently trying to raise $2700 (£2000) to support my writing and campaigning on Guantánamo for the next three months.

 

At Guantánamo, as I have been reporting recently, the military commissions, a broken trial system ill-advisedly dragged out of historical retirement for prisoners seized in the “war on terror,” have reconvened after a summer break — see my articles Not Fit for Purpose: The Ongoing Failure of Guantánamo’s Military Commissions and Chief Defense Counsel of Guantánamo’s Military Commissions Calls Them a “Poisoned Chalice,” a Betrayal of the Constitution and the Law. Also see my updated Full List of Prisoners Charged in the Military Commissions at Guantánamo.

That the commissions are a poor substitute for justice can readily be understood from the fact that only eight convictions have been secured, and four of those have subsequently been overturned by appeals court judges, and from the realization that the only ongoing cases are almost permanently deadlocked because, on the one hand, prosecutors seek to hide the fact that the men facing trials were tortured, while on the other those defending the men insist that fair trial cannot take place until the torture is openly discussed.

The failures of the commissions have also been made clear in a recent appeals court ruling in the case of Abd al-Rahim al-Nashiri, accused of involvement in the attack on the USS Cole in 2000, and in a hearing at Guantánamo for Majid Khan, who first agreed to a plea deal over four and a half years ago, in February 2012, but who has not yet been sentenced. Read the rest of this entry »

Chief Defense Counsel of Guantánamo’s Military Commissions Calls Them a “Poisoned Chalice,” a Betrayal of the Constitution and the Law

A sign for the military commissions at Guantanamo. Behind is the first courtroom used for the commissions, which is no longer in use, but photos of the current courtroom are not allowed. (Photo: Cora Currier/ProPublica).I wrote the following article for the “Close Guantánamo” website, which I established in January 2012, on the 10th anniversary of the opening of Guantánamo, with the US attorney Tom Wilner. Please join us — just an email address is required to be counted amongst those opposed to the ongoing existence of Guantánamo, and to receive updates of our activities by email.

Here at “Close Guantánamo,” as we continue to monitor the situation at Guantánamo in the dying days of the Obama presidency, we remain concerned for all the categories of men held. Of the last 61 men in the prison the statistics are as follows:

  • 20 men have been approved for release.
  • 23 have had their ongoing imprisonment approved by Periodic Review Boards.
  • Eight are awaiting decisions by Periodic Review Boards.
  • Ten are facing — or have faced — trials.

Of the men approved for release, seven have been languishing at Guantánamo since the high-level, inter-agency Guantánamo Review Task Force made decisions about what should happen to the prisoners in 2009, while the other 13 have been approved for release in the last two and a half years by the latest review process, the Periodic Review Boards (for further information, see our definitive Periodic Review Board list). All of these men should be released as soon as possible. Read the rest of this entry »

Not Fit for Purpose: The Ongoing Failure of Guantánamo’s Military Commissions

"End Guantanamo commissions: use fair trials" - an Amnesty International supporter outside the White House.

Please support my work! I’m currently trying to raise $2800 (£2100) to support my writing and campaigning on Guantánamo for the next three months.

 

In the 15 years since the terrorist attacks of September 11, 2001, the United States has systematically undermined many of the key values it claims to uphold as a nation founded on and respecting the rule of law, having embraced torture, indefinite imprisonment without charge or trial, trials of dubious legality and efficacy, and extra-judicial execution.

The Bush administration’s torture program — so devastatingly exposed in the executive summary of the Senate Intelligence Committee’s report into the program, published in December 2014 — no longer exists, but no one has been held accountable for it. In addition, as the psychologist and journalist Jeffrey Kaye has pointed out, although ostensibly outlawed by President Obama in an executive order issued when he took office, the use of torture is permitted, in particular circumstances, in Appendix M of the Army Field Manual.

When it comes to extrajudicial execution, President Obama has led the way, disposing of perceived threats through drone attacks — and although drones were used by President Bush, it is noticeable that their use has increased enormously under Obama. If the rendition, torture and imprisonment of those seized in the “war on terror” declared after the 9/11 attacks raised difficult ethical, moral and legal questions, killing people in drone attacks — even in countries with which the US is not at war, and even if they are US citizens — apparently does not trouble the conscience of the president, or the US establishment as a whole. Read the rest of this entry »

No Justice for 14 Tortured “High-Value Detainees” Who Arrived at Guantánamo Ten Years Ago

Abu Zubaydah, Khalid Sheikh Mohammed and Abd al-Rahim al-Nashiri, three of the 14 "high-value detainees" who arrived at Guantanamo from CIA "black sites" ten years ago, on September 6, 2006.I wrote the following article (as “Tortured “High-Value Detainees” Arrived at Guantánamo Exactly Ten Years Ago, But Still There Is No Justice”) for the “Close Guantánamo” website, which I established in January 2012, on the 10th anniversary of the opening of Guantánamo, with the US attorney Tom Wilner. Please join us — just an email address is required to be counted amongst those opposed to the ongoing existence of Guantánamo, and to receive updates of our activities by email.

Ten years ago, on September 6, 2006, President Bush announced that secret CIA prisons, whose existence he had always denied, had in fact existed, but had now been closed down, and the prisoners held moved to Guantánamo.

14 men in total were transferred to Guantánamo. Three were named by President Bush — Abu Zubaydah, described as “a senior terrorist leader and a trusted associate of Osama bin Laden,” and Khalid Sheikh Mohammed (KSM) and Ramzi bin al-Shibh, allegedly involved in the 9/11 attacks. Biographies of the 14 were made available, and can be found here. They include three other men allegedly involved in the 9/11 attacks — Walid bin Attash, Ammar al-Baluchi (aka Ali Abd al-Aziz Ali) and Mustafa al-Hawsawi — plus Abd al-Rahim al-Nashiri, allegedly involved in the bombing of the USS Cole in 2000, Ahmed Khalfan Ghailani, a Tanzanian allegedly involved in the US Embassy bombings in Kenya and Tanzania in 1998, Majid Khan, a Pakistani alleged to be an al-Qaeda plotter in the US, the Indonesian Hambali and two Malaysians, Zubair and Lillie, the Libyan Abu Faraj al-Libi, and a Somali, Gouled Hassan Dourad.

After the men’s arrival, they were not heard from until spring 2007, when Combatant Status Review Tribunals (CSRTs) were held, which were required to make them eligible for military commission trials. As I explained in my book The Guantánamo Files in 2007, KSM and Walid bin Attash confessed to involvement with terrorism, although others were far less willing to make any kind of confession. Ammar al-Baluchi, for example, a nephew of KSM, and another of the alleged 9/11 co-conspirators, denied advance knowledge of the 9/11 attacks, or of al-Qaeda. Read the rest of this entry »

Plea Deals in Federal Court Mooted for Guantánamo Prisoners in Next Year’s National Defense Authorization Act

A campaigner wearing a President Obama mask calls for the closure of Guantanamo in London (Photo: AP/Kirsty Wigglesworth).I wrote the following article for the “Close Guantánamo” website, which I established in January 2012, on the 10th anniversary of the opening of Guantánamo, with the US attorney Tom Wilner. Please join us — just an email address is required to be counted amongst those opposed to the ongoing existence of Guantánamo, and to receive updates of our activities by email.

Last week there was an interesting development in relation to President Obama’s hopes of closing Guantánamo, when the Senate Armed Services Committee announced that it had included a provision in its version of next year’s National Defense Authorization Act, which, as Charlie Savage reported for the New York Times, would allow Guantánamo prisoners to “plead guilty to criminal charges in civilian court via video teleconference,” and would also allow them to be “transferred to other countries to serve their sentences.”

Last November, a number of lawyers sent a letter to the Justice Department, which the New York Times discussed here, in which they “express[ed] interest in exploring plea deals by video teleconference — but only in civilian court, not military commissions.”

Lawyers for six prisoners said that they “may wish” to negotiate plea deals — Abu Zubaydah, the “high-value detainee” for whom the CIA’s torture program was developed, Abu Faraj al-Libi, another “high-value detainee,” Sanad al-Kazimi, a Yemeni who recently went before a Periodic Review Board, Abd al-Rahim Ghulam Rabbani, a Pakistani, Abdul Latif Nasser, the last Moroccan in the prison, and Soufian Barhoumi (aka Sufyian Barhoumi), an Algerian whose PRB is taking place on May 24. As Savage described it, the letter also “said several others are interested, and that Majid Khan, who has pleaded guilty in the [military] commissions system but has not been sentenced, would like to plead again, in civilian court.” Read the rest of this entry »

The American Lawyer’s Six Guantánamo Bar Profiles: Thomas Wilner, David Remes, Jennifer Cowan, Wells Dixon, David Nevin and Lee Wolosky

Thomas Wilner of Shearman & Sterling (Photo: Diego M. Radzinschi).

The November 2015 issue of The American Lawyer featured a “Special Report: The Guantánamo Bar,” consisting of six interviews with attorneys who have worked on Guantánamo. I’m cross-posting them below, as I think they will be of interest, and I also estimate that many of you will not have come across them previously.

The six lawyers featured were: Thomas Wilner of Shearman & Sterling; David Remes, formerly of Covington & Burling; Jennifer Cowan of Debevoise & Plimpton; J. Wells Dixon of the Center for Constitutional Rights; Public Defender David Nevin; and Lee Wolosky of Boies, Schiller & Flexner. Wolosky was appointed last June as the White House’s special envoy for Guantánamo closure, while the rest have represented prisoners held at Guantánamo.

Thomas Wilner represented a number of Kuwaiti prisoners, and also represented the prisoners in their habeas corpus cases before the Supreme Court in 2004 and 2008. He is co-founder, with me, of the Close Guantánamo campaign, launched in January 2012, through which, for the last four years, we have been attempting to educate people about why Guantánamo must be closed, and who is held there, and I’m pleased to note that The American Lawyer described him as “the most vocal proponent in the Guantánamo bar for the closure of the offshore prison.” Read the rest of this entry »

Saifullah Paracha, Pakistani Businessman and “Very Compliant” Prisoner, Faces Guantánamo Review Board

A photo of Guantanamo prisoner Saifullah Paracha, taken by representatives of the International Committee of the Red Cross, and made available to his family.I wrote the following article — as “Guantánamo Review Board for Saifullah Paracha, Pakistani Businessman and ‘Very Compliant’ Prisoner, Kidnapped in Thailand in 2003” — for the “Close Guantánamo” website, which I established in January 2012, on the 10th anniversary of the opening of Guantánamo, with the US attorney Tom Wilner. Please join us — just an email address is required to be counted amongst those opposed to the ongoing existence of Guantánamo, and to receive updates of our activities by email.

Last week Saifullah Paracha, a Pakistani businessman, and, at 68 years of age, Guantánamo’s oldest current prisoner, became the 28th Guantánamo prisoner to have his potential release considered by a Periodic Review Board (see our full list here). This review process was set up in 2013 to review the cases of all the prisoners not facing trials (just ten men) or already approved for release by President Obama’s high-level, inter-agency Guantánamo Review Task Force in 2010, when almost two-thirds of the remaining prisoners — 156 out of 240 — were recommended for release, or, to use the task force’s careful wording, were “approved for transfer subject to appropriate security measures.”

Of the 28, five decisions have yet to be made, but of the 23 others the success rate for these men securing approval for their release is extremely high — 83% — with 19 men having their release recommended. What makes these decisions particularly important is that they puncture the rhetoric that has surrounded these men — both under George W. Bush, with the glib dismissal of everyone at Guantánamo as “the worst of the worst,” and under Barack Obama, with his task force’s conclusion (more worrying because of its veneer of authority) that 48 of those eligible for PRBs were “too dangerous to release,” even though it was also acknowledged that insufficient evidence existed to put them on trial; in other words, that it was not reliable evidence at all.

In attempting to justify its decisions, the task force noted that its members had relied on “the totality of available information — including credible information that might not be admissible in a criminal prosecution — [which] indicated that the detainee poses a high level of threat that cannot be mitigated sufficiently except through continued detention.” Read the rest of this entry »

A Few Surprises in the New Guantánamo Prisoner List

I wrote the following article for the “Close Guantánamo” website, which I established in January 2012 with US attorney Tom Wilner. Please join us — just an email address is required to be counted amongst those opposed to the ongoing existence of Guantánamo, and to receive updates of our activities by email.

On February 20, my friend and colleague, the investigative journalist Jason Leopold, published a prisoner list from Guantánamo, which he had just obtained from the Pentagon, and which had not previously been made public.

The list, “71 Guantánamo Detalnees Determined Eligible to Receive a Periodic Review Board as of April 19, 2013,” identifies, by name, 71 of the 166 prisoners who were held at the time, and, as Jason explained in an accompanying article: Read the rest of this entry »

Former Guantánamo Prisoner David Hicks Appeals His 2007 Conviction for Non-Existent War Crime

Ever since the conservative court of appeals in Washington D.C. delivered an extraordinary ruling last October, vacating one of the only convictions in the military commission trial system introduced for prisoners at Guantánamo, it has only been a matter of time before other appeals would be lodged.

Last Tuesday, November 5, the first man convicted in the trials — the Australian citizen David Hicks, who agreed to a plea deal in March 2007, on the basis that he would be returned to Australia to serve a seven-month sentence — lodged an appeal with the US Court of Military Commission Review, “arguing for a summary dismissal of the conviction,” as the Sydney Morning Herald described it, “because the offence was not a war crime at the time Mr. Hicks was detained, and his guilty plea was made under duress because of his detention, torture and abuse at Guantánamo.”

Just seven convictions have been secured in Guantánamo’s military commission system (between March 2007 and February 2012), which has struggled — and failed — to achieve any kind of credibility since George W. Bush’s Vice President, Dick Cheney, ill-advisedly dragged the commissions from the history books in November 2001. Ruled illegal by the Supreme Court in June 2006, they were then revived by Congress, and revived by Congress a second time under President Obama in 2009, despite warnings by senior administration lawyers that convictions would almost certainly be overturned on appeal. Read the rest of this entry »

US Military Admits Only 2.5 Percent of All Prisoners Ever Held at Guantánamo Will Be Tried

So it’s official, then. Eleven and a half years after the “war on terror” prison opened at Guantánamo, the maximum number of prisoners that the US military intends to prosecute, or has already prosecuted, is 20 — or just 2.5 percent of the 779 men held at the prison since it opened in January 2002.

The news was announced on Monday June 10 by Army Brig. Gen. Mark Martins, the chief prosecutor for the military commissions at Guantánamo, and it is a humiliating climbdown for the authorities.

When President Obama appointed an inter-agency task force to review the cases of the remaining Guantánamo prisoners, which issued its report in January 2010, the task force recommended that 36 of the remaining prisoners should be tried.

Just five of the 36 have since been to trial — one in the US, and four through plea deals in their military commissions at Guantánamo. Another man — Ali Hamza al-Bahlul — had already been tried and convicted, in the dying days of George W. Bush’s second term, and two others had been sent home after their trials — David Hicks after a plea deal in March 2007, and Salim Hamdan after a trial in July 2008 — making a total of 39 prosecutions, or intended prosecutions, after eleven and a half years of the prison’s existence. That was just 5 percent of the men held throughout Guantánamo’s history, but now that figure, which was, in itself, an extremely poor reflection on the efficacy of the prison and its relationship to any acceptable notions of justice, has been halved.

As Reuters described it, Brig. Gen. Martins explained that the number set by the task force was “ambitious” in light of two rulings last October and in January this year by judges in the court of appeals in Washington D.C. Read the rest of this entry »

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Andy Worthington

Investigative journalist, author, campaigner, commentator and public speaker. Recognized as an authority on Guantánamo and the “war on terror.” Co-founder, Close Guantánamo, co-director, We Stand With Shaker. Also, singer and songwriter (The Four Fathers) and photographer.
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